India Today

THE MATTER OF PRIVACY

- By M.G. Arun

Is privacy a fundamenta­l right? In a move that will have wide-ranging ramificati­ons, the Supreme Court has set up a nine-judge bench to revisit its 1954 and 1962 rulings, which held that the right to privacy was not a fundamenta­l right. Which way the court goes will determine if Aadhaar can be used as an omnibus identifica­tion tool—for sundry government benefits, to pay income tax, to buy mobile SIM cards and more.

The central government, too, believes the right to privacy is not a fundamenta­l one but a common law right, and Article 21 of the Constituti­on protects only unauthoris­ed intrusion into one’s privacy. Petitioner­s in the case, however, argue for a broader definition of privacy, with senior counsel Gopal Subramaniu­m saying the fundamenta­l ideas of liberty and freedom can’t exist without right to privacy.

The hearing of the case marks several months of debate on the use of Aadhaar, which accesses relatively intimate personal data, including biometric and iris scans, for the most commonplac­e benefits and purchases. The issues are data security, privacy and whether Aadhaar should be compulsory to get benefits. Experts feel denial of basic social security schemes just because a person is not enrolled for Aadhaar is unacceptab­le. “Denying people something they are entitled to, just because your technology doesn’t work properly, is inhuman and cruel,” says an expert on privacy laws. Many argue Aadhaar is far more intrusive than other databases, since biometric info is collected as well. “Why biometric authentifi­cation instead of an OTP (one-time password)? The government should use transparen­cy as a mode of accountabi­lity rather than central surveillan­ce,” he says. The basic design of Aadhaar also needs to be improved as it exposes more than what is actually required at its point of use.

In its 2012 report, the Justice A.P. Shah-led group of experts on privacy said a framework on the right to privacy in India must include concerns around data protection on the internet, protection from unauthoris­ed intercepti­on, audiovideo surveillan­ce, use of personal identifier­s, bodily privacy including DNA and physical privacy. Experts say every system, including the US National Security Agency, is prone to leaks and hacking. While the SC verdict will define the extent of privacy, a legislativ­e framework to address the concerns around data protection and privacy is also critical.

Aadhaar is more intrusive than other databases because it also uses a person’s biometric informatio­n

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